Martin McKee: The Brexit agreement—a work in progress, but much is still uncertain

December 8, 2017

Although it was touch and go up to the very end, the negotiators from the European Union and the United Kingdom government have agreed that “sufficient progress” has been made in their talks on Brexit. The report is a mere 15 pages long and should be read by anyone with an interest in this issue, not least because, within an hour of its publication, British ministers, and some of the journalists that share the Westminster bubble with them, were putting forward their own interpretations, some of which were difficult to reconcile with the actual text.

Some basic points must be borne in mind. Firstly, nothing is yet agreed between the European Union and the United Kingdom. That will only happen at the forthcoming European Council meeting on 14 December. It seems likely that the remaining 27 member states will support it, because it delivers almost everything that the European Union wanted. Also they will recognise the necessity of moving onto the next stage, when the United Kingdom will be forced to say what it wants out of a final deal, before which nothing can be guaranteed. The process was not helped by the delays introduced by the United Kingdom following its humiliating backtracking on what most people felt was an agreement earlier in the week.

Secondly, the report has no legal status. It is entirely possible that the United Kingdom could renege on it. This cannot be dismissed, given the instability within the ruling Conservative party, something that may be exacerbated when the more argumentative Brexiteers have actually read the agreement.

Thirdly, presuming that talks do move onto the next stage, the discussions will be about a transition arrangement and not, except to the extent necessary to make progress, a free trade agreement. By common consent, it will take several years to move to whatever is finally agreed. It is only after the transition is agreed that the vastly more complex discussions on the United Kingdom’s future relations with the European Union can begin. To add to the complications, the United Kingdom will also have to initiate discussions on the several hundred trade deals with the rest of the world from which it will be excluded by virtue of no longer being a member of the European Union. Given the magnitude of the task ahead, it seems extremely optimistic that this could be completed in less than a decade.

In the sequencing agreed by both parties, three areas were to be resolved: continuing payments to the European budget, citizens’ rights, and the border in Ireland. What has been agreed?

From the beginning, it was clear that the budgetary issues were the easiest to resolve. Contrary to the way that was presented by British ministers and newspapers, this was never about paying a fixed sum. Many of the payments were for commitments made by the European Union, to which the United Kingdom is a party, whose costs will not be known for many years, including not just the pension contributions that have attracted so much attention, but also things like ensuring the safety of Chernobyl and supporting refugees in Turkey. It will also contribute to the regular budget as if it was still a Member State up to the financial year 2020.

There is also some progress on citizens’ rights. Those EU27 citizens already in the United Kingdom when it leaves will be able to stay, as will family members, including as yet unborn children. These family members, if not already in the United Kingdom, will be able to join them. The agreement does not go as far as the European Parliament wants, which is for the burden of proof in rejecting any application to lie with the United Kingdom, but it does place an obligation on the British authorities to be helpful and not to punish any minor mistakes. The reasons for including this are obvious, given the experiences of many European citizens, but the challenge involved in changing the mindset of the British Home Office, which has responded with remarkable enthusiasm to Theresa May’s injunction to create a hostile environment for migrants, should not be underestimated. The United Kingdom has been able to retain its rights to impose criminal records checks on those seeking permanent residence, although it remains to be seen how this will be used and, for example, will it include such things as minor traffic infringements. Also, there may be practical consequences with regard to identifying offences committed within other Member States if it no longer has access to the necessary databases, which is far from certain.

Citizens of either entity residing in the other will continue to enjoy the protection of existing European law for a period of eight years. This may be hard to swallow for many Brexiteers. Thus, British courts will retain the right to refer cases to the European Court of Justice during this period. The need for a continuing role of the Court was obvious to lawyers, but denied by Brexiteers. There can only be one supreme arbiter of European law. The British government argues that this will involve only a few referrals each year. This is almost certainly true as, even now, the numbers are small and many concern European institutions that the United Kingdom will be leaving. Hence, there may be little real change.

One important point is that any rights that British citizens retain if they travel abroad when Brexit occurs will not extend to their presence in other Member States. This is particularly relevant in relation to the European Health Insurance Card and related matters. The agreement only states that its provisions will continue for those British citizens already in the EU27 at the time of Brexit (and vice versa) but says nothing about its continued operation. As I have noted previously, the legal difficulties of replicating it are considerable, perhaps explaining its exclusion. More generally, however, beyond some general principles such as those set out here, there is remarkably little detail on citizens’ rights.

The most difficult part of the agreement was Ireland. The United Kingdom government was forced to withdraw the initial agreement following opposition by the Democratic Unionist Party in Northern Ireland, on whom the minority Conservative Party depends for votes in the House of Commons. What has been agreed can best be described as a fudge. Once again, no practical explanation is offered for how the United Kingdom as a whole can be outside the single market and customs union yet avoid a physical border in Ireland. Brexiteers constantly invoke the examples of Switzerland and Norway, even when being photographed beside the buildings that impose their physical borders. Yet, as has been pointed out repeatedly, those borders do exist and involve many complex processes that are very different from what pertains in Ireland today. Crucially, in the absence of any other arrangements, the United Kingdom will remain compliant with the rules of the Single Market and Customs Union. However, an additional caveat has been introduced in that any separate arrangements for Northern Ireland must be agreed by its Executive and Assembly. Beyond the obvious immediate problem that both bodies are currently suspended, it should be noted that the Democratic Unionist Party currently has only one seat more than Sinn Fein in the Assembly and its current stance, in a province where the majority of people voted to remain in the European Union, may not have helped its cause. Interestingly, the most recent polling indicates that more Northern Ireland residents favour a United Ireland in the European Union than a United Kingdom outside it should there be “hard Brexit”. However, given the constitutional requirement for cross-party agreement in the Assembly, its ability to decide in favour of a separate status may be limited. Thus, it remains conceivable, at least under this agreement, that the United Kingdom would remain inside the Single Market and Customs Union. This is, of course, not what Theresa May wants but it does highlight how little has actually been sorted out.

But at least the United Kingdom can move on to the next stage. This may be the difficult part. In other developments, we now know that the Cabinet has yet to discuss what it wants in any final deal, that the government has conducted no studies of the impact of Brexit, that the “secret” material it has produced is largely cut and pasted from material in the public domain, although, on the positive side, the House of Lords EU Committee has published its assessment, noting that a “no deal” scenario would be catastrophic while the Commons Public Accounts Committee, in its assessment of the government’s assumptions about border controls, judged them to be “reckless”. So, while some progress has been made, it would be unwise to overstate it.

Martin McKee is professor of European public health at the London School of Hygiene and Tropical Medicine.

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